[5] The [opponent] has invoked a prior public use that is said to destroy both the novelty of and the inventive step involved in the claimed subject-matter. This prior use belongs to its own activities because the underlying facts concern the sale of the “Weinlaub 6-89” product by the [opponent].

[5.1] According to the established case law of the Boards of appeal, a finding that a use forms part of the state of the art for the purpose of A 54(2) should only be made if the available evidence, when subjected to a strict and careful evaluation, allows to establish that it has occurred (T 750/94 [4]). Consequently, before it can be asserted that a use is part of the state of the art, the Board has to ascertain that the evidence on file allows to establish with a degree of certainty that is close to absolute conviction – or, in other words, beyond all reasonable doubt – that this prior use has indeed occurred before the priority date of the impugned patent (T 97/94 [5.1]).

[5.2] The alleged prior use consists in the marketing of the “Weinlaub 6-89” product before the priority date of the patent-in-suit. This product is found in a catalogue dated May 1996 (page 8 of document V1). The product bears the reference 46364 and is not associated to a production batch (lot de fabrication).

[5.3] The [opponent] asserts that the product proposed in the catalogue corresponds to the production batch of October 26, 1995, which is mentioned in document V3 dated November 2, 1995.

This document provides details on a series of compounds of the “Igora Soft line extension” product line, which includes the product “Weinlaub” of nuance 6-89 the composition of which is referred to by number 99185 and its cream formulation by number 75855. According to this document, the product contains a blend of powders of colour AB as well as a blend of powder of colour C, both of which are simply identified by the same number 11008. Consequently, even considering that the production batch disclosed in document V3 has indeed been proposed for sale by means of catalogue V1, document V3 alone does not establish which are the oxidation colorants present in the product “Weinlaub” of nuance 6-89 because the colorants used for the preparation of the product are codified, i.e. via a colour blend 99185 or by a blend of powders of colour AB and C.

The [opponent] refers to a production batch of coloured powder bearing the number 199185 and dated November 10, 1995 (document V5).

This blend of coloured powder has been produced after the “Weinlaub 6-89” product according to document V3 had been manufactured (2 November 1995). Thus the colour blend of document V5 could not have been used for the preparation of the production batch of the “Weinlaub 6-89” product according to document V3. Document V4 concerns a production batch of the product “Igora Soft 6-89” dated February 5, 1998, which is later than the catalogue V1 dated May 1996. As a consequence, it cannot establish the composition of the product “Weinlaub” of nuance 6-89 as proposed in the catalogue of May 1996.

The [opponent] has tried to support the public prior use by asserting that all the compositions of the blends of colours referred to by the same number are identical and that, therefore, a composition identical to the one disclosed in document V5 had been used for the manufacture of the “Weinlaub 6-89” product.

According to the established case law of the Boards of appeal of the EPO, each party to the proceedings bears the burden of proof for the facts it asserts; if a fact that is relevant to the decision is not proven, the decision is taken to the detriment of the party that was not able to administer the proof incumbent on it. In the present case the [opponent], who alone is in possession of the evidence, asserts, without providing any evidence whatsoever, that the “Weinlaub” product of nuance 6-89 referred to in catalogue V1 is the same than the one obtained in the production batch of document V3 dated November 2, 1995, and that all the recipes for the coloured power numbered 99185 have the same composition, irrespective of their manufacturing date.

Moreover, document P9 – which consists of copies of packages of products of the “Igora Royal” product line – shows that the products marketed as the same nuance may have differing colorant compositions. For instance, products 1 and 2 have not the same colorant composition although they are both referred to as “Igora Royal of nuance 4-68”. As a matter of fact, the composition of product 1 comprises o-aminophenol, HC red 3, and 4-amino 3-nitrophenol, whereas product 2 does not. Conversely, 4-amino-2-hydroxytoluene is only found in product 2.

Consequently, the Board considers that the documents filed by the [opponent] are not sufficient for establishing beyond all reasonable doubt that the composition of the product “Weinlaub” of nuance 6-89 referred to in the catalogue dated May 1996 is the same as the one disclosed in documents V4 and V5.

Thus the composition of the product “Weinlaub” of nuance 6-89 has not been established. Consequently, the alleged prior use has not been sufficiently proven and cannot be part of the state of the art (A 54(2)).

Under these circumstances, it is not necessary to answer the question on which the parties did not agree, i.e. whether the mere fact that this product was referred to in a catalogue, without there being any proof for a sale, is equivalent to making the composition of the product available to the public.

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